Administration of Justice in the Republic of Armenia December 2012 The administration of justice in Armenia has been of concern for many years and remains a serious issue. Analysis founded on comprehensive monitoring conducted by local human rights defenders indicates that key issues like lack of judicial independence, use of torture and ill-treatment, and poor conditions and overcrowding in penitentiaries remain outstanding and urgent. In late 2010 and 2011 political prisoners incarcerated after events in March 2008 were released. Nevertheless, specific cases of politically motivated persecution continue. In 2010 the International Federation for Human Rights (FIDH) together with its member organisation in Armenia, the Civil Society Institute (CSI), and other Armenian NGOs, released a briefing paper outlining serious concerns regarding the functioning of the justice system in the Republic of Armenia. Concerns included violations of the right to a fair trial encompassing also the abuse of pre-trial detention, violations of the presumption of innocence and the rights of the defense, and the use of illegally obtained testimony secured through torture and ill treatment. These concerns were also at the center of discussions during the 2010 International Forum on Justice organised by FIDH in Armenia, as well as the recommendations transmitted directly to the Armenian President and the Minister of Justice. Two years on, FIDH, CSI and the Norwegian Helsinki Committee have conducted a thorough assessment of recent developments in this field. Sadly, significant improvements are still badly needed to shift the general pattern of human rights breaches in this context. Moreover, the individual cases previously highlighted by our organisations have still not been resolved. The current briefing highlights these deficiencies in six key areas, namely torture and ill treatment, political prisoners, investigations into March 2008 abuses, judicial independence, juvenile justice and the system for early conditional release. In doing so, it will provide factual examples to illustrate concerns, before making a series of recommendations to the Armenian authorities to remedy this situation. Our organisations, the International Federation for Human Rights, Civil Society Institute and the Norwegian Helsinki Committee express our deep concern about the issues raised in this briefing. We call upon the authorities to eliminate violations in the administration of justice 1 and ensure the establishment of an independent judiciary and the rule of law. These steps are fundamental to the further democratic development of Armenia. Torture and Ill-treatment As highlighted, once again, by the UN Committee against Torture in considering Armenia’s third periodic report in May 2012, the definition of torture in the Armenian Criminal Code1 has still not been brought into compliance with the UN Convention against Torture. Moreover, as mentioned in the report from its December 2011 visit to Armenia (published 3 October 2012), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) "[continues to be] concerned to note that the bulk of the recommendations made after the 2010 visit with respect to life-sentenced prisoners remain unimplemented".2 Most acts of torture perpetrated in Armenia are inflicted by law enforcement officials (usually police officers) in a bid to obtain confessions during arrest and interrogation. In practice, Armenian courts generally fail to act upon allegations of torture and/or ill-treatment that are made in the course of proceedings. Police mistreatment is overwhelmingly unreported due to fear of retaliation, and where such allegations are reported effective investigations are extremely rare. The factual circumstances surrounding cases of torture and ill-treatment are usually only subject to a higher degree of public scrutiny from human rights defenders and the general public where they have resulted in a victim’s death (e.g. the cases of Levon Gulyan and Vahan Khalafyan). The independence and effectiveness of investigations into allegations of torture are compromised because the police themselves are charged with conducting such enquiries. A Special Investigation Service (SIS) was established in 2007 to specialise in investigating cases involving possible abuses by public officials. However, the prosecutor’s office does not send all allegations of torture to the SIS for investigation; instead police investigators continue to handle most cases themselves. Consequently, communications about torture continue to be investigated within the framework of the very entity to which the perpetrators of torture themselves belong. Notably, the prosecutor's office oversees the lawfulness of inquests and preliminary investigations, as well as pursuing charges relating to such inquiries in court, thus creating a conflict of interest. These functions should therefore need to be separated and vested in different bodies. The same prosecutor supervises the legality of investigations, approves indictments submitted by the investigators upon the completion of the investigations and defends the relevant charges in the court. The same prosecutor therefore exercises three different powers relating to the same case, namely: supervision, approval and defence. This fact creates a situation in which prosecutors lack sufficient impetus to prevent abuses during investigations, due to the fact that they are reliant on the evidence thereby produced. Furthermore, the prosecutor’s disincentive to exclude unlawfully obtained evidence is further compounded by the fact that 1See Criminal Code of the Republic of Armenia, Article 119. 2Report to the Armenian Government on the visit to Armenia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 5 to 7 December 2011 available at: http://www.cpt.coe.int/documents/arm/2012-23-inf-eng.htm. See the recommendations of the CPT after its visit to Armenia from 10 to 21 May 2010 on http://www.cpt.coe.int/documents/arm/2011-24-inf- eng.htm 2 accepting such evidence requires acknowledgement that the prosecution has failed to properly carry out its supervisory functions during the investigation. The following cases represent some of those that have managed to make it into the public arena, thus facilitating a glimpse of the illegal practices carried out by state officials in the administration of justice in Armenia – practices that have been known to escalate into death in custody. They also highlight the inadequate investigative and judicial responses with which such cases have been met. The Levon Gulyan case Twelfth May 2012 marked the 5th anniversary of the death of Levon Gulyan, a witness in a murder case who died in police custody in 2007. Mr. Gulyan’s case is symbolic of other such cases due to the endless trail of failed though persistent attempts to obtain justice for this death. Indeed, to date, no state official has been held responsible for Mr. Gulyan’s demise. Levon Gulyan died on 12 May 2007 after falling from a second floor window of the police headquarters in which he was being held. Officers insisted that Mr. Gulyan jumped from the window in a bid either to commit suicide or escape. Nevertheless, having had Mr. Gulyan’s body returned to them after his death, members of Levon Gulyan's family discovered bruises on his body indicating that he had been a victim of violence. Lawyers present at the forensic medical examination of Levon Gulyan's body further stated that it evidenced signs of violence. The investigation into this case was opened in 2007, and has since then been terminated several times by the investigative body only to be reopened on the basis of subsequent court decisions. On 8 February 2012, the Special Investigation Service of the Republic of Armenia closed the criminal case on Levon Gulyan's death for the fourth time. In so doing it breached the decision made by the Court of Cassation of the Republic of Armenia on 27 August 2010 that it should "eliminate the violations of the rights and the freedoms of a person during the pre- trial investigation", and ran counter to strong civil society demands for accountability in this case.3 On 22 February 2012 the representatives of Levon Gulyan’s legal successor petitioned the European Court on Human Rights (ECtHR), demanding recognition of violations under Article 2 (right to life), Article 5 (right to freedom and personal integrity), and Article 13 (right to effective justice) of the European Convention on Human Rights. The Stepan Hovakimyan case Stepan Hovakimyan and Vahram Kerobyan were both charged with theft, occurred at the Moscow Cinema hall in Yerevan in January 2010. Both were charged with violations of Article 177(3)(1) of the Criminal Code of the Republic of Armenia and detained in pre-trial detention for two and a half years. This detention was based solely on the confession of Hovhakimyan – a confession that he later stated had been elicited through the use of torture. The detainees did not obtain a judicial pronouncement on their guilt until 25 September 2012; Stepan Hovakimyan was found guilty and sentenced to three years imprisonment, while 3‘Armenia : FIDH, CSI and the Armenian Helsinki Committee call on the authorities to investigate and re-open Levon Gulyan’s case’, FIDH Press Release, 18 May 2011, available at: http://fidh.org/Armenia-FIDH-CSI-and- the-Armenian. 3 Vahram Kerobyan was acquitted. The principal evidence founding